This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP1534-CR

Cir. Ct. No.2010CF5245

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT I

State of Wisconsin,

Plaintiff-Respondent,

v.

Twana M. Burris,

Defendant-Appellant.

APPEAL
from a judgment and an order of the circuit court for Milwaukee County:jeffrey
a. wagner, Judge.Affirmed.

Before Curley, P.J., Fine and Brennan, JJ.

¶1PER CURIAM. Twana A. Burris appeals from a
judgment of conviction for one count of attempted bribery of a witness,
contrary to Wis. Stat. §§ 946.61(1)(a)
and 939.32 (2011–12).[1]She also appeals from an order denying her
postconviction motion for relief.She
argues that she is entitled to a new trial based on newly discovered evidence,
her lawyer’s constitutionally deficient performance, and in the interest of
justice.She also argues that she should
be released on bond pending the outcome of this appeal.We reject her arguments and affirm.

BACKGROUND

¶2Burris’s cousin, Michael King, told the police that Burris’s
two adult sons, Dytanial Burris and Harrison Smith, beat him and threw his
wheelchair in a dumpster.The alleged
motive for the attack was King’s expected testimony against another relative in
a criminal case.Dytanial Burris was
arrested the day after the attack, but Smith was not immediately arrested.Both were charged in connection with the
beating.

¶3It is undisputed that on September 18, 2010, five days after
King was attacked, Burris and her daughter, Kamilah Nicole Burris, went to King’s
home and spoke with him for about thirty minutes.After they left, King called the police and
told them that Burris had tried to bribe him with a plastic bag full of money
so that he would not testify against Burris’s sons.Burris was charged with one count of
attempted bribery of a witness.

¶4At trial, King testified that he was resting in his bedroom
when Burris and her daughter came to his home.[2]His girlfriend, Wanda Carlson, answered the
door and then went to the bedroom and told King that Burris and her daughter
wanted to talk with him.King agreed to
let Burris and Kamilah Burris into the home to discuss “the situation that had
went on.”Carlson remained in the
bedroom.

¶5King said that he told Burris and her daughter what Burris’s
sons had done to him.When Burris
questioned whether her son had actually kicked King in the face, King told her
that she could watch the video of the assault.King testified that during the visit, Burris attempted to bribe him not
to testify against her sons.He said
that Burris “pulled … a moneybag out of her purse, a clear hefty bag with some
bank rolls in it” and told King that he could have “any part of that money if
[he] left until the case was over with.”King said he responded:“[N]o,
you can put your money back in your purse.I don’t want no part of your money.I am pressing charges.”

¶6King said that the conversation ended when he told Burris
that he did not want to talk with her anymore.After Burris and her daughter left, King returned to his bedroom and
asked Carlson if she heard what Burris had said; Carlson indicated that she
had.King called the police and was
interviewed by an officer within an hour.The officer who interviewed King testified that King told her that
Burris had attempted to bribe him with a plastic bag of money that King said
contained “thousands of dollars.”

¶7Carlson testified that while she was in the bedroom, she did
not hear the entire conversation, but she heard Burris say, “I just lost my
brother.Please, don’t take my boys
away.”Carlson testified that she also
heard Kamilah say, “There’s video?”Carlson said that after Burris left, King told her that Burris tried to
give him $5000.Carlson was present when
King called the police to report the attempted bribery and she also gave a
statement to a police officer.

¶8Kamilah Burris testified that during the conversation with
King, neither she nor Burris offered King money, threatened him, or asked him
not to go to court.She denied that the
subject of the beating came up during the visit.She said they talked about how King was
feeling generally and she said that King “was complaining about his life and
being miserable and being in that wheelchair.”

¶9Burris testified that she went to King’s home “to check on
his well-being” and “to make peace amongst the family because I believe family
is very important and families should stick together.”She said that she, Kamilah, and King “discussed
the family,” but did not talk about the beating or her sons.She testified:“[T]he conversation regarding the beating did
not occur at all.”Instead, she said,
King talked about how miserable he was because he had been in a wheelchair for
over fifteen years.Burris denied having
a plastic bag of money in her purse and said she never offered King money or
told him not to go to court.

¶10On both direct examination and cross-examination, Burris was
asked about her contacts with Dytanial Burris on the day she visited King.Burris acknowledged participating in a
three-way phone call with Dytanial Burris and another woman shortly before
Burris went to visit King.Burris said
Dytanial Burris, who was in jail at the time of the call, asked Burris to take
some t-shirts that he got in Las Vegas to a friend of his.[3]The telephone call was recorded by jail
personnel.

¶11The State also asked Burris whether she and a woman named
Latoya Funches went to visit Dytanial Burris at 6:31 p.m. on the same day that
she met with King.Burris denied that
she did so.After the defense rested,
the State introduced rebuttal testimony from a Milwaukee County Sheriff’s
Department detective, Warren Spottek, concerning jail visitation logs from
September 18, 2010.The log showed that
Burris and Funches visited Dytanial Burris at 6:31 p.m.Spottek said that jail visitors had to
identify themselves, but he was not sure whether photo identification was
required.Kamilah, however, testified
that she was required to show a photo identification when she visited her
brother in jail.

¶12In closing, the State asserted that Burris lied to the
jury.It argued, among other things,
that it would not make sense for Burris to visit King and not discuss the
recent attack or for Dytanial Burris to ask his mother to deliver t-shirts for
him when he was in jail facing criminal charges.The State also argued that Burris lied about
whether she visited Dytanial Burris in jail on September 18, 2010.

¶13Although there was no on-the-record discussion of jury
questions during deliberations, it is undisputed that the jury submitted a
question in writing related to Burris’s alleged visit to the jail.The jury asked whether the trial court could
confirm whether a person has to show identification to visit someone in
jail.The trial court wrote a note back
to the jurors indicating that they would have to rely on their recollection of
the testimony.

¶14The jury found Burris guilty.Prior to sentencing, Burris retained a new lawyer who filed a
postconviction motion that focused on Burris’s alleged visit to Dytanial Burris
at 6:31 p.m. on the same day she visited King.The postconviction motion argued that the defense had newly discovered
evidence that Burris did not visit Dytanial Burris, including:phone records indicating that calls were
placed from Burris’s home phone to the phone of her friend at 5:31 p.m. and
6:25 p.m.; affidavits from Burris and that same friend stating that they were
talking by phone at the time of the alleged visit; and affidavits from Kamilah
Burris and Funches stating that they were the two women who visited Dytanial
Burris on September 18, 2010.Burris
argued that she was entitled to a new trial based on this newly discovered
evidence.

¶15Burris also argued that her trial lawyer provided
constitutionally deficient representation by failing to “investigate and
challenge” the facts related to Burris’s alleged visit to Dytanial Burris.This too, Burris asserted, entitled her to a
new trial.

¶16The State filed a written response.First, it argued that the postconviction
motion was premature because sentencing had not yet occurred and not all
transcripts had been prepared.Second,
the State asserted that Burris was not entitled to a new trial based on newly
discovered evidence because she was aware of the evidence before trial and
there was no reasonable probability of a different outcome if the additional
testimony had been offered.In support
of its argument, the State submitted an affidavit from Spottek indicating that
while he was unsure at trial whether visitors to the jail had to show photo
identification, he had since learned that visitors must do so.Finally, the State argued that Burris could
not prove that her trial attorney provided constitutionally deficient
representation.

¶17After a hearing, the trial court denied the motion as
premature, noting that no transcripts had been prepared.The trial court set a sentencing date.Prior to sentencing, Burris filed a renewed
motion for a new trial.At sentencing,
the parties and the trial court briefly discussed Burris’s motion.The trial court again concluded that the
motion was premature and proceeded to sentencing.

¶18The trial court sentenced Burris to one year of initial
confinement and one year of extended supervision.It stayed the sentence and placed Burris on
probation for two years, imposing a year in the House of Correction as a
condition of probation.

¶19After sentencing, Burris moved the trial court to release her
pending appeal.The trial court held a
hearing on the motion at which it also discussed the merits of Burris’s
previously filed postconviction motion.The trial court denied the stay and Burris’s postconviction motion.

DISCUSSION

¶20Burris argues that she is entitled to a new trial based on
newly discovered evidence, her lawyer’s constitutionally deficient performance,
and in the interest of justice.She also
argues that she should be released on bond pending the outcome of this
appeal.We consider each issue in turn.

I. Newly
discovered evidence.

¶21To obtain a new trial
on the basis of newly discovered evidence, a defendant is required to prove, by
clear and convincing evidence, that: “‘(1) the evidence was discovered after
conviction; (2) the defendant was not negligent in seeking the evidence; (3)
the evidence is material to an issue in the case; and (4) the evidence is
not merely cumulative.’”State v. Plude, 2008 WI 58, ¶32,
310 Wis. 2d 28, 48, 750 N.W.2d 42, 52 (citation omitted); State v. Brunton, 203 Wis. 2d 195, 208, 552 N.W.2d 452, 458
(Ct. App. 1996) (standard of proof is clear and convincing evidence).A new witness may constitute newly discovered
evidence, see State v. Love,
2005 WI 116, ¶¶47–50, 284 Wis. 2d 111, 140–141, 700 N.W.2d 62, 76–77, but newly
discovered evidence does not include the “new appreciation of the importance of
evidence previously known but not used,” State
v. Bembenek, 140 Wis. 2d 248, 256, 409 N.W.2d 432, 435 (Ct. App. 1987);
accord State v. Fosnow, 2001
WI App 2, ¶9, 240 Wis. 2d 699, 706, 624 N.W.2d 883, 886.If a defendant proves the first four
criteria, then the trial court must determine “whether a reasonable probability
exists that had the jury heard the newly-discovered evidence, it would have had
a reasonable doubt as to the defendant’s guilt.”See Plude, 2008 WI 58, ¶32, 310 Wis. 2d
at 48, 750 N.W.2d at 52.

¶22Burris
argues that “[t]he telephone records and affidavits secured after her
conviction were secured diligently by the defendant after her trial counsel”
did not secure them.She contends that
the evidence shows she did not visit Dytanial Burris at 6:31 p.m. on
September 18, 2010.

¶23In response, the State argues that Burris did not prove that
this evidence was discovered after Burris’s conviction, the first criterion of
the newly discovered evidence test.The
State explains:

If Burris was in fact talking to [her friend] on the
telephone at the time the jail visitation logs said she was visiting Dytanial,
that was evidence Burris had before the conviction.She knew what her own actions were, and she
knew the identity of the witness [that] … she needed to back up her story.Similarly, if in fact [Kamilah Harris]
visited Dytanial that evening with Funches, that was information that [Kamilah
Harris]—the only defense witness besides Burris herself—had before the
conviction.Of course, Burris could
plausibly argue that, although she had this information prior to trial, she
didn’t appreciate its significance until afterwards.Unfortunately for Burris, that argument is
foreclosed by Bembenek and Fosnow.

We agree with the State’s analysis.Burris knew whether she visited her son prior to trial and, when the
subject arose at trial, she stated multiple times that she did not.She knew whether she was on the phone with
her friend that evening.Further, she
admits in her brief that she was aware of the jail’s visitation log prior to
trial, because it was produced during a Milwaukee Sheriff’s Department internal
affairs investigation of the attempted bribe.[4]

¶24Burris has not shown, by clear and convincing evidence, that
the evidence was discovered after her conviction.Because she has not satisfied the first
criterion for a new trial based on newly discovered evidence, seePlude, 2008 WI 58, ¶32, 310 Wis. 2d at 48, 750
N.W.2d at 52, we need not consider whether the other Plude
criteria were satisfied, seeState
v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (“[C]ases
should be decided on the narrowest possible ground.”).Burris is not entitled to a new trial.

II. Performance
of Burris’s trial lawyer.

¶25Burris argues that she is entitled to a new trial because her
trial lawyer provided constitutionally deficient representation.To succeed on her claim, she must prove: (1) deficient performance; and (2) prejudice. See Strickland
v. Washington,
466 U.S. 668, 687 (1984).A court need
not consider both prongs “if the defendant makes an insufficient showing on
one.” Id. at 697.In order
to succeed on the prejudice aspect of the Strickland analysis, “[t]he
defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”Id. at 694.

¶27In both of her postconviction motions, Burris alleged that her
trial lawyer provided deficient representation by not investigating and
challenging the allegation that Burris visited her son at the jail on September
18, 2010.On appeal, she reiterates that
argument.She also raises several new
allegations concerning her trial lawyer’s effectiveness, such as asserting that
her trial lawyer did not “forcefully challenge the testimony of the State’s two
key witnesses.”Because Burris did not
raise those additional arguments in her postconviction motions, the trial court
was not provided an opportunity to address those issues, and we conclude that
they were forfeited.SeeState v. Van Camp, 213 Wis. 2d 131,
144, 569 N.W.2d 577, 584 (1997) (arguments raised
for the first time on appeal are generally deemed forfeited).

¶28We turn to the allegation that was preserved for appeal:Burris’s assertion that her trial lawyer did
not properly investigate and challenge the State’s assertion that Burris
visited her son in the jail on September 18, 2010.We conclude that Burris was not entitled to a
Machner
hearing on this issue because the Record conclusively demonstrated that she was
not prejudiced by her lawyer’s alleged deficiencies and, therefore, she was not
entitled to relief.SeeHoppe, 2009 WI 41, ¶59 n.36, 317 Wis. 2d at 192 n.36, 765
N.W.2d at 809 n.36; Strickland, 466 U.S. at 687, 694, 697.

¶29Specifically, Burris’s postconviction motion included affidavits
indicating that she was on the telephone at the time someone visited her son at
the jail, as well as phone records showing that calls were placed from her home
to a friend’s home at the time someone visited Dytanial Burris.Burris implies that her trial lawyer should
have presented this information at trial.For several reasons, we are unconvinced that “the result of the
proceeding would have been different” even if Burris’s lawyer had more fully
investigated the jail visitation issue and had presented the evidence Burris
has now proffered.SeeStrickland, 466 U.S. at 694.

¶30First, the proffered evidence does not prove that Burris did
not visit the jail.The phone records
only prove that someone used her phone to place a call at the time of the jail
visit, not that she placed the call.We
also note that even though Burris argues that her trial lawyer should have
investigated the availability of jail personnel who might have witnessed the
visit or the existence of video that would establish who visited Dytanial
Burris, Burris’s postconviction motions did not include evidence that such
witnesses are available or that such recordings exist.Further, the State’s affidavit submitted in
response to Burris’s postconviction motion supported Kamilah Burris’s testimony
that photo identification is required when one visits the jail.Thus, if Burris’s proffered evidence were
submitted at a new trial, the jurors could choose to believe Burris did not
visit her son only if they accepted Burris’s assertion that the jail log
system—which requires all visitors to log in and show photo identification—failed
to properly record Dytanial Burris’s visitors on September 18, 2010.

¶31Furthermore, even if Burris’s evidence convinced a jury that
she did not, in fact, visit her son on the evening of September 18, 2010, it
does not follow that “the result of the proceeding would have been
different.”SeeStrickland, 466 U.S. at 694.Whether Burris visited the jail was a collateral issue that was relevant
to her credibility.The State presented
only a jail log showing that Burris visited the jail; it did not present the
testimony of witnesses with personal knowledge of the people who visited Dytanial
Burris that night.Therefore, if the
jury believed Burris about the visit, it would only prove that the jail log was
wrong, not that some other witness was untruthful.The State’s witnesses would be no less
believable and the State would still be able to impeach Burris’s credibility by
pointing out the implausibility of her testimony that she spoke with her son
about delivering t-shirts and that she never discussed the beating with King
when she visited him.

¶32For the foregoing reasons, we conclude that Burris was not
entitled to a Machner hearing on her assertion that her trial lawyer provided
deficient representation by not investigating and challenging the allegation
that Burris visited her son at the jail on September 18, 2010.The Record conclusively demonstrated that she
was not prejudiced by her lawyer’s alleged deficiencies with respect to the
jail visit and, therefore, she was not entitled to relief.

¶33Finally, we address Burris’s concern about professional
discipline imposed against Burris’s trial lawyer by the Seventh Circuit and the
Wisconsin Supreme Court for that lawyer’s work in unrelated cases.Burris first mentioned her lawyer’s
discipline in her renewed postconviction motion.In a single paragraph, she asked the trial
court to take judicial notice of the fact that her lawyer’s performance in
another case had been “severe enough for that counsel to be banned from the
Seventh Circuit Courts.”Burris also
noted that her own disciplinary complaint against her trial lawyer had been
dismissed, although she indicated that she planned to appeal that
dismissal.Burris concluded:“The point is that Defendant’s assertion of
ineffective assistance of counsel may be part of a pattern.”

¶34On appeal, Burris has included in her appendix copies of
disciplinary decisions concerning her trial lawyer, as well as copies of
newspaper stories about the disciplinary cases.Burris implies that because her lawyer was disciplined in other cases, her
lawyer provided deficient representation here.Burris also asserts that she “did not know the pressure [her trial
lawyer] was under” and therefore Burris “could not evaluate if she needed new
counsel.”We are not convinced that
Burris is entitled to relief based on the fact that her trial lawyer was
disciplined in other cases.The fact
that discipline was imposed in other cases does not constitute per se ineffective assistance in this
case.We also reject Burris’s attempt to
raise new allegations for the first time on appeal, such as her suggestion that
her trial lawyer’s performance was affected by the pressure the lawyer felt
from the ongoing disciplinary proceedings.SeeVan
Camp, 213 Wis. 2d at 144, 569 N.W.2d at 584.

III. New trial in the interest of justice.

¶35Burris seeks a new trial in the interest of justice.Wisconsin
Stat. § 752.35 provides that the court of appeals may grant a new
trial in the interest of justice where “the real controversy has not been fully
tried, or that it is probable that justice has for any reason miscarried.”Burris appears to seek a new trial on both
bases, although she does not discuss the legal differences between the two
bases or case law applying § 752.35.Instead, Burris provides eight pages of critical analysis of her trial
lawyer’s examination of witnesses and also questions why certain witnesses were
not called.In doing so, Burris implies
that the real controversy was not fully tried because certain evidence was not
presented or was not presented well.Burris also asserts that in order “to prevent a miscarriage of justice,”
she needs a new trial “with adequate representation.”

¶36In effect, Burris is basing her request for a new trial in the
interest of justice on allegations that her trial lawyer’s performance was
constitutionally deficient.Where a
defendant seeks a new trial in the interest of justice based on allegations
that his or her trial lawyer was ineffective, the proper analysis to apply is
the Strickland
test.State v. Mayo, 2007 WI
78, ¶60, 301 Wis. 2d 674, 660, 734 N.W.2d 115, 130.We have already concluded that Burris failed to
prove that her trial lawyer provided constitutionally deficient representation
by not investigating and challenging the allegation that Burris visited her son
at the jail on September 18, 2010.We
reject Burris’s attempt to raise new allegations about her trial lawyer’s
performance for the first time on appeal by raising them in the Wis. Stat. § 752.35 context.SeeVan Camp, 213 Wis. 2d at 144, 569 N.W.2d at 584.

¶37We
are unconvinced that a new trial in the interest of justice is warranted on grounds
that the real controversy was not fully tried or that justice miscarried.See Wis. Stat. § 752.35.The jury had before it testimony from four
witnesses concerning what was said and done during Burris’s visit to King’s
home, which was the crucial factual determination for the jury to make.It was the jury’s role to weigh the
witnesses’ credibility and determine what happened.SeeState
v. Poellinger, 153 Wis. 2d 493, 506, 451 N.W.2d 752, 757 (1990).We decline to grant a new trial in the
interest of justice.

IV. Request
for release on bond pending appeal.

¶38Burris previously moved this court to release her on bond
pending the outcome of her appeal.We
denied the motion.In her appellate
brief, she asked this court to reconsider its order.We decline to reverse our earlier order
denying her motion for release pending appeal.

By the Court.—Judgment and order
affirmed.

This
opinion will not be published.SeeWis.
Stat. Rule 809.23(1)(b)5.

[1] All
references to the Wisconsin Statutes are to the 2011–12 version unless
otherwise noted.

[2] We
do not attempt to summarize all of the trial testimony from King and the other
witnesses.Additional testimony will be
addressed in the discussion section as necessary.

[3] In
closing, the State suggested that Dytanial Burris’s conversation with his
mother about t-shirts was actually about bribing King, while Burris’s attorney
argued that the conversation was “not code for bringing a zip lock bag of money
over to Michael King to get him not to show up to court.”

[4] At
the time Burris committed the crime, she was a Milwaukee County Sheriff’s
Department guard at a correctional facility in Franklin, Wisconsin.